A constitutional perspective of police powers of search and seizure in the criminal justice system

Abstract:

Before 1994 criminal procedure was subject to the sovereignty of Parliament and the
untrammelled law enforcement powers of the executive which resulted in the
authoritarian and oppressive criminal justice system of the apartheid era. The
Constitution, Act 108 of 1996 has since created a democratic state based on the
values of the supremacy of the Constitution and the rule of law. The basic principles
of criminal procedure are now constitutionalised in the Bill of Rights. The Bill of
Rights protects the fundamental rights of individuals when they come into contact
with organs of the state which includes the police. The Criminal Procedure Act 51 of
1977 authorises the police to search for and to seize articles, and has long provided
the only legal basis for obtaining warrants to search for and to seize articles and for
performing such actions without a warrant in certain circumstances. Generally the
standard for these measures and actions taken under their purview has been one of
reasonableness. Since the birth of the Constitution there has been additional
constraints on search and seizure powers. Not only are there now constitutionalised
standards by which such legal powers are to be measured, but there is also the
possibility of excluding evidence obtained in course of a violation of a constitutional
right. The provisions of the Criminal Procedure Act are now qualified by the
Constitution. Where feasible a system of prior judicial authorisation in the form of a
valid search warrant obtained on sworn information establishing reasonable grounds
is a precondition for a valid search or seizure. Search and seizure without a warrant
is permitted only in exceptional circumstances such as an immediate threat to
person or property. By prohibiting unreasonable searches and seizures the
Constitution places important limits on police efforts to detect and investigate crime.
The Constitution appreciates the need for legitimate law enforcement activity.

Citation:Basdeo, Vinesh (2009) A constitutional perspective of police powers of search and seizure in the criminal justice system, University of South Africa, Pretoria, <http://hdl.handle.net/10500/3449>

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